HEIDELBERG GRAPHIC EQUIPMENT LIMITED
BUNDLE DEAL TERMS AND CONDITIONS (effective January 2010)
These Bundle Deal Terms and Conditions (“Bundle Deal Conditions”) shall be subject to the Heidelberg Graphic Equipment Limited (“Heidelberg”) General Trading Terms and Conditions in
relation to the purchase of Equipment and to the Trading Terms and Conditions for Consumable Sales in relation to the purchase of Consumables both of which shall be deemed to form part of
these Bundle Deal Conditions. In the event of any inconsistency between these Bundle Deal Conditions and the General Trading Terms and Conditions and the Trading Terms and Conditions for
Consumable Sales, these Bundle Deal Conditions shall prevail.
1.
DEFINITIONS AND INTERPRETATION
1.1
In these Bundle Deal Conditions:
good all damage to the Equipment whether or not occasioned by its own act or default or
otherwise;
(v)
keep Heidelberg fully informed at all times of all material matters relating to the
Equipment;
(vi)
retain the Equipment at all times at the Installation Address (marked as „property of
Heidelberg‟ and stored separately (at no cost to Heidelberg) from goods supplied to the
Buyer by third parties so that they are easily identified as belonging to Heidelberg) and not
move or attempt to move the Equipment or any part of it to any other location without
Heidelberg‟s prior written consent; and
(vii)
permit Heidelberg by its duly authorised representative to inspect the Equipment at all
reasonable times and for such purpose to enter upon any premises at which the
Equipment may be located, and shall grant reasonable access and facilities for such
inspection.
2.2.2
The Buyer shall not without Heidelberg‟s prior written consent:
(i)
perform or permit any maintenance of, or any modification or addition to, the Equipment
(save to the extent the same is not covered by any maintenance agreement between the
Buyer and Heidelberg). Any such modification or addition shall upon being made become
the exclusive property of Heidelberg provided that Heidelberg shall not become liable to
make any payment or otherwise account to the Buyer in respect thereof;
(ii)
part with control of, sell or offer for sale, pledge, mortgage, charge, underlet or lend the
Equipment;
(iii)
suffer or permit the Equipment to be confiscated, seized or taken out of the Buyer‟s
possession or control under any distress, execution or other legal process, but if the
Equipment is so confiscated, seized or taken, the Buyer shall forthwith notify Heidelberg
thereof and shall at the Buyer‟s sole expense use its best endeavours to procure an
immediate release therefrom and shall indemnify Heidelberg against all losses, costs,
charges, damages and expenses, (including legal expenses) incurred by reason or in
respect thereof;
(iv)
do or permit to be done any act or thing which will or may jeopardise the right, title and/or
interest of Heidelberg in the Equipment (including attaching the Equipment to the Buyer‟s
premises in any way); or
(v)
use the Equipment for any unlawful or immoral purpose.
3.
SUPPLY OF CONSUMABLES
3.1
Price of Consumables
3.1.1
The Buyer agrees that the price payable for the Consumables per unit specified shall be
as set out in the Schedule attached hereto.
3.1.2
Heidelberg shall, in its sole discretion, be entitled to alter the price of any Consumables to
reflect increased costs of procurement, production or delivery suffered by Heidelberg or
other market conditions. Such adjustments may affect the Minimum Order Value and such
change in the Minimum Order Value shall be negotiated and agreed in writing between
Heidelberg and the Buyer.
3.2
Minimum Order Value
Acknowledgement means the written acknowledgement given by Heidelberg to
the Buyer accepting the Buyer‟s order for Consumables and/or Equipment;
Agreement Term means the term of the agreement as set out in the Order Form
or as amended pursuant to Conditions 4.2 or 6.1 of these Bundle Deal Conditions;
Consumables means any consumable product as described in the Order Form,
supplied or to be supplied by Heidelberg to the Buyer;
Contract means the contract between Heidelberg and the Buyer for the sale and
purchase of Consumables and/or Equipment which contract is formed when the
Acknowledgment is signed by Heidelberg and the Buyer and which shall be
deemed to incorporate these Bundle Deal Conditions;
Deposit means the deposit payable for the Equipment pursuant to Condition 4.1.1;
Equipment means any goods agreed to be sold to the Buyer by Heidelberg in the
Acknowledgement;
Equipment Cost means the price of the Equipment as set out in the
Acknowledgment;
Installation Address means the address set out in the Acknowledgement at which
the Equipment shall be installed;
Minimum Order Value means the Buyer‟s permitted minimum order for
Consumables as set out in the Schedule to these Bundle Deal Conditions and
Minimum Order Value per Quarter shall be construed accordingly;
Month means a calendar month and Months shall be construed accordingly;
Order Form means the Heidelberg form for bundled Consumables signed by the
Buyer;
Quarter means any period of three (3) consecutive Months ending on March 31,
June 30, September 30 and December 31 (each a “Quarter Date”) provided that
the first such period shall commence on the date of the Contract and end on the
next succeeding Quarter Date; and
Schedule means the schedule attached to these Bundle Deal Conditions detailing
the type of consumables, the agreed purchase volume, the agreed price and the
installation date.
1.2
Terms defined in the Order Form and/or the Schedule shall have the same
meaning in these Bundle Deal Conditions.
1.3
References to Conditions and to the Schedule are, unless otherwise stated, to
Conditions and the Schedule in and to these Bundle Deal Conditions.
1.4
Condition headings are for ease of reference only and shall not affect the
construction or interpretation of these Bundle Deal Conditions.
1.5
Where the context so admits or requires, words denoting the singular include the
plural and vice versa.
2.
SUPPLY OF EQUIPMENT
2.1
Equipment Lease
2.1.1
Heidelberg shall lease the Equipment to the Buyer with effect from the agreed
installation date for use at the Installation Address upon and subject to these
Bundle Deal Conditions.
The Buyer agrees to order each Quarter Consumables with a value in aggregate at least
equivalent to the Minimum Order Value Per Quarter specified in the Schedule.
3.3
2.1.2
At the end of the Agreement Term, provided the terms of these Bundle Deal
Conditions have been complied with by the Buyer, Heidelberg shall deliver a final
statement for the Equipment to the Buyer. Title to the Equipment shall pass
automatically from Heidelberg to the Buyer upon receipt by the Buyer of
Heidelberg‟s final statement as aforesaid.
2.1.3
The quantity and description of the Equipment shall be as set out in the Order
Form.
2.2
Buyer Responsibilities
2.2.1
The Buyer shall:
(i)
insure and keep insured the Equipment to the full price against all risks to the
reasonable satisfaction of Heidelberg with a reputable insurance company until the
date that property in the Equipment passes from Heidelberg, and shall whenever
requested by Heidelberg produce a copy of the policy of insurance;
(ii)
ensure that the Equipment is kept and operated in a suitable environment, used
only for the purposes for which it is designed, and operated in a proper manner by
trained competent staff in accordance with Heidelberg‟s instructions and
recommendations and in accordance with any applicable statute, statutory
instrument or regulation from time to time in force;
(iii)
without limitation to Condition 2.2.1(i), take such steps as may be necessary to
ensure that the Equipment will at all times be safe and will pose no risk to health or
safety when used;
An order of Consumables will be deemed to be accepted by Heidelberg only when
Heidelberg issues an invoice in respect of such order to the Buyer.
3.4
Purchase Obligation
The Buyer agrees to purchase Consumables specified in orders submitted by it if such
orders are accepted by Heidelberg and to take delivery of the same in accordance with
the usual delivery practices of Heidelberg.
4.
PAYMENT
4.1
Payment
4.1.1
The Buyer shall pay to Heidelberg the Deposit in full on the date the Contract is signed.
4.1.2
All payments to be made by the Buyer under the Contract shall be made without
withholding or set-off on account of disputes, cross-claims or for any other reason
whatsoever.
4.2
Refund
If the Buyer shall have ordered and purchased such quantity of Consumables throughout
the previously completed Quarter that exceeds the Minimum Order Value Per Quarter,
Heidelberg may reduce the Agreement Term to reflect the increased repayment rate. If
the Agreement Term is changed the Schedule shall be revised by Heidelberg and
provided to the Buyer to reflect the changed Agreement Term and Minimum Order
Value(s).
4.3
(iv)
Acceptance of Consumables Orders
VAT
Subject to Condition 4.2 above, the Buyer shall pay to Heidelberg an amount representing
VAT at the standard rate in respect of the Equipment Cost, such payment to be made on
the date the Acknowledgment is signed by Heidelberg against production of a VAT
invoice.
at its own expense, maintain the Equipment in good and substantial repair and
serviceable operating condition (fair wear and tear only excepted) including
replacement of worn and defective parts and shall, save to the extent the same is
covered by any maintenance agreement between the Buyer and Heidelberg, make
1
HEIDELBERG GRAPHIC EQUIPMENT LIMITED
BUNDLE DEAL TERMS AND CONDITIONS (effective January 2010)
5.
TERMINATION
5.1
Right to terminate
Heidelberg shall have the right, without prejudice to any other right or remedy
which may be available to it, to terminate the Contract (in whole or in part) at any
time by written notice to the Buyer if:
5.1.1
the Buyer fails to make any payment due hereunder or in connection herewith on
the due date for payment, and fails to remedy such non-payment within seven (7)
days of receiving notice from Heidelberg requiring it to do so;
5.1.2
the Buyer commits any material breach of any obligation under these Bundle Deal
Conditions which breach, if capable of remedy, the Buyer fails to remedy within
fourteen (14) days of receiving notice from Heidelberg requiring it to do so;
the Buyer becomes insolvent, has a receiver, administrative receiver, administrator
or manager appointed in respect of it or the whole or any part of its assets or
business, makes any composition or arrangement with its creditors, takes or suffers
any similar action in consequence of a debt or an order or resolution is made or
passed for its dissolution or liquidation (whether voluntary or compulsory) except a
solvent voluntary liquidation for the purpose only of reconstruction or
amalgamation;
5.1.3
5.1.4
any distress, execution or sequestration is levied or enforced upon any of the
property, assets or undertaking of the Buyer and is not paid out, discharged,
satisfied or removed within fourteen (14) days of receiving notice of any such
distress, execution or sequestration;
5.1.5
any security created by a debenture, mortgage or charge given by the Buyer
becomes enforceable;
5.1.6
any other lease or hiring or loan agreement entered into by the Buyer and
containing provisions similar or having a similar effect to the provisions of this
Condition 5 is terminated pursuant to any such provision;
5.1.7
the Buyer sells or otherwise disposes of the whole or any substantial part of its
undertaking or assets;
5.1.8
the Buyer ceases or threatens to cease to carry on its business or a resolution is
passed or a petition presented to any court for the winding up of the Buyer (in the
event the Buyer is a company); or
5.1.9
the Equipment shall in Heidelberg‟s opinion be damaged beyond repair or shall be
lost, stolen, seized or confiscated.
5.2
Consequences of termination for cause
Upon termination of the Contract pursuant to Condition 5.1, or any other
repudiation of the Contract by the Buyer and which is accepted by Heidelberg:
5.2.1
5.2.2
the Equipment shall no longer be in the Buyer‟s possession, custody or control with
Heidelberg‟s consent, and the Buyer hereby grants Heidelberg, its agents and
employees an irrevocable licence at any time to enter without notice and at the
Buyer‟s expense any of the Buyer‟s premises where the Equipment is or might be
stored to recover the Equipment and the rights granted to Heidelberg pursuant to
this Condition shall survive termination of the Contract howsoever caused; and
6.1.2
The Minimum Order Value Per Quarter of Consumables may be renegotiated, at
Heidelberg‟s discretion, between Heidelberg and the Buyer and the necessary amounts in
the Order form and the Schedule shall be amended accordingly. Heidelberg shall charge
the Buyer an administration fee for this supplemental amendment to the Order Form and
the Schedule.
6.2
Failure to supply following acceptance of order
Where, in any Quarter, the Buyer fails to order and/or purchase the Minimum Order Value
Per Quarter as a result of Heidelberg‟s failure to supply the Buyer with Consumables for
which it has accepted an order, where such failure:
6.2.1
is caused by circumstances beyond Heidelberg‟s control; or
6.2.2
follows termination of the Contract by Heidelberg pursuant to Condition 5,
then the Buyer shall pay to Heidelberg such amount(s) as, when aggregated with the
value of all orders placed, shall result in the Buyer paying to Heidelberg, pursuant to the
Contract, an amount equivalent to the Minimum Order Value Per Quarter in respect of the
Quarter during which such failure arose and all previous Quarters.
7.
This Contract shall commence on the date hereof and, unless terminated earlier in
accordance with these Bundle Deal Conditions, shall continue in force throughout the
Agreement Term.
8.
ASSIGNMENT
8.1
The Buyer may not assign, sub-contract, transfer or otherwise dispose of any of its rights
or licences arising under the Contract without the prior written consent of Heidelberg.
8.2
It is understood that Heidelberg contemplates assigning or mortgaging the Contract, and
that any assignee of Heidelberg may assign the agreement. All rights of Heidelberg under
the Contract may be assigned, pledged, mortgaged, transferred or otherwise disposed of,
either in whole or in part, with prior written notice to the Buyer.
8.3
If Heidelberg assigns the Contract or the amounts due or to become due hereunder or
any other interest herein, whether as security for any of its indebtedness or otherwise, no
breach or default by Heidelberg hereunder or pursuant to any other agreement between
Heidelberg or the Buyer (if any) shall excuse performance by the Buyer of any provision
hereunder.
8.4
No assignee pursuant to condition 8.3 shall be obliged to perform any duty, covenant or
condition required to be performed by Heidelberg under the terms of the Contract but no
such assignment shall impair or diminish Heidelberg‟s obligations hereunder.
8.5
The Buyer hereby consents to any such documentation as Heidelberg or any such
assignee may require and to furnish to any such assignee copies of any notices given by
the Buyer under the Contract.
9.
INTELLECTUAL PROPERTY
(i)
all sums due but unpaid under the Contract at the date of such demand; and
9.1
No right, title, interest or licence is granted under this these Bundle Deal Conditions to the
Buyer under any patents, trade marks, service marks, goodwill, registered designs, utility
models, design rights, copyright (including copyright in computer software), semiconductor topography rights, inventions, trade secrets and other confidential information,
know-how, or any other intellectual and industrial property and rights of a similar or
corresponding nature in any part of the world, whether registered or not or capable of
registration or not and including the right to apply for and all applications for any of the
foregoing rights and the right to sue for past infringements of any of the foregoing rights
except the right to use or resell the Equipment.
(ii)
an agreed compensation for loss of profit, a sum equal to the aggregate
Minimum Order Value that would (but for the termination or repudiation) have
been payable if the Contract had continued (assuming no discounts had been
or were earned); and
(iii)
any costs and expenses incurred by Heidelberg in recovering the Equipment
and/or in collecting any sums due under the Contract(including without
limitation any storage, insurance, repair, transport and remarketing costs);
and
9.2
Nothing in these Bundle Deal Conditions entitles the Buyer to use the name of Heidelberg
for any reason whatsoever when manufacturing or selling their own goods or finished
products to any third parties without Heidelberg‟s prior written consent.
(iv)
all amounts payable under Condition 6.2; and
(v)
interest on all such sums calculated in accordance with the Contract; and
10.
MISCELLANEOUS
10.1
The failure of any party to enforce or to exercise, at any time or for any period of time, any
term of or any right arising pursuant to these Bundle Deal Conditions does not constitute,
and shall not be construed as, a waiver of such term or right and shall in no way affect
that party's right later to enforce or to exercise it.
10.2
Each party acknowledges and affirms that the Contract (together with any agreement
referred to therein) contains all the terms agreed between the parties regarding its subject
matter and supersedes any prior agreement, understanding or arrangement between
them, whether oral or in writing. No representation, undertaking or promise shall be taken
to have been given or be implied from anything said or written in negotiations between the
parties prior to the Contract except as expressly stated in the Contract. Neither party shall
have any remedy in respect of any untrue statement made by the other upon which that
party relied in entering into the Contract (unless such untrue statement was made
fraudulently) and that party's only remedies shall be for breach of contract as provided in
the Contract.
10.3
A person who is not a party to the Contract has no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce or enjoy the benefit of any term of the Contract.
10.4
The Contract shall be governed by and construed in accordance with English law and the
parties hereby irrevocably submit to the sole and exclusive jurisdiction of the courts of
England. Should these Conditions be translated into any language other than English, this
English version of the Conditions shall prevail over any translation.
Consequences of all terminations
Upon termination of the Contract for any reason prior to the end of the Agreement
Term, the Buyer shall forthwith at its own expense deliver the Equipment to
Heidelberg at such location as Heidelberg may require in good order and condition.
The Buyer‟s responsibility under this Condition 5.3 shall be discharged only when it
has received a receipt for the Equipment duly signed by an authorised
representative of Heidelberg.
5.4
DURATION OF AGREEMENT
the Buyer shall pay to Heidelberg on demand a sum equal to the aggregate of:
for the purposes of the preceding sub-Condition 5.2.1 the Buyer hereby
acknowledges and agrees that any use whatsoever and howsoever that it shall
have made of the Equipment under any equipment leasing or other arrangements
with Heidelberg shall be deemed substantial use of such equipment amounting to
good consideration and which would entitle Heidelberg to retake possession of the
Equipment.
5.3
shall be obliged to pay whether or not any Consumables are supplied pursuant to such
invoice) for an amount equal to the Minimum Order Value Per Quarter less the price of
Consumables ordered by the Buyer by reference to such Quarter pursuant to Condition
3.2.
No prejudice
Termination of the Contract shall be without prejudice to the rights and obligations
of the parties accrued up to the date of termination.
6.
BREACH OF PURCHASING OBLIGATIONS
6.1
Failure to place minimum order
6.1.1
Where, in any Quarter, the Buyer fails to order and/or purchase the Minimum Order
Value Per Quarter of Consumables pursuant to Condition 3.2 then Heidelberg shall
notify the Buyer that the Buyer must immediately pay the arrears attributable to
such Quarter (or such part thereof as remains unpaid at such time) to Heidelberg,
and Heidelberg shall submit an invoice (which the Buyer hereby acknowledges it
2